Intestacy
Property remaining after the intestate’s death passes to the intestate’s heirs, accoring to a state specific . (unalterable) scheme
Intestacy Applicable Law
Which state’s intestacy laws apply?
- Marital Rights - Law of domicle when acquired
- Succession Rights -
- Personal Property - Intestate’s domicile at death
- Real Property - Law of situs
Intestacy General Scheme
- Surviving Spouse’s Share
- Spouse made an heir, spouse’s portion varies by state
- Share of Descendants
- Per Stirpes
- Per Capita With Representation
- Per Capita at Each Generation
- Share of Ancestors and Collaterals
- Parents, then siblings, then grandparents, etc.
- Escheat to State
Per Stirpes (By Right of Representation)
Divide into shares at first generation below decedent even if no survivors; one share for each surviving child and one share for each deceased child that left descendents.
Per Capita With Representation
Divide into shares at first generation with survivors
If all children deceased and all property going to grand childer, each grandchild takes an equal share
Per Capita at Each Generation
Divide into shares at first generation with survivors but then gives all equally related persons the same share.
Unworthy Heirs
- Heir Killing Statue
- If heir murders the intestate heir will not take through a slayer statute or constructuve trust
- Courts are divided on how to handle lesser degrees of killings
Advancement
Intestacy
An irrevocable gift intended by the donor as prepayment of an inheritance
- Many states require a writing
Effect of Advancement: Advancee must account for advancement–go into hodgpot–compute shares as if advancement were part of the estate
Survival
Most states require an heir to outlive the intestate by a set period to inherit (generally 120 hours)
Disclaiming an Inheritance
- In writing,
- signed by disclaimant, and
- acknowledgement before a notary,
- filed within 9 months.
Can’t disclaim after acceptance
Disclaimers are irrevocable
Compliance with Formalities of Wills
Most states require exact compliance
Wills Applicable Law
- Real Property
- Law of Situs
- Personal Property
- Law of domicile at death
- Savings Statutes (most states)
- Will valid if it complies with
- local law,
- law where executed, or
- law of decedent’s domicile at death or when executed
- Will valid if it complies with
Requirements of a Valid Will
- Legal Capacity
- Generally, 18 years old
- Testimentary Capacity
- Sound Mind
- understand the action, comprehend effect, know the general nature and extend of property, recognize the natural objects of bounty
- All at same time
- Sound Mind
- Testamentary Intent
- Must intend instrument to be a will
- Formalities
- In Writing
- Signed by Testator or Proxy
- Attestation (Witnesses)
- at least 2, must have capacity, may need to know it is a will, in testator’s presence
- Some states void gifts to interested witnesses
Holographic Wills
- Wills in testator’s own handwriting
- State’s vary as to what can be in testator’s own handwirting
- In about 1/2 states, holographic wills do not need witnesses
Classifications of Testamentary Gifts
Based on Type of Gift
- Devise - Gift of Real Property
- Bequest - Gift of Personal Property
- Specific - Exactly known
- Specific of General Nature
- Legacy - Gift of not-sufficiently described personal property (often cash)
- General
- Demonstrative - Payble out of a designated fund
- Residuary Gift
Based on Type of Beneficiay
- Private gift (non-charitable)
- Charitable
Ademption
For specific gifts
- By Extinction (not in estate)
- Generally, gift fails, unless
- replacement item
- balance of purchase price (after testator sells)
- proceeds of condmenation or insurance
- proceeds from sale by guardian or conservator
- Generally, gift fails, unless
- By Satisifaction
- Similar to advancement of intestacy
- May require writing for gift to be deemed a satisfaction
Abatement
When estate it too small to satisfy all gifts, what gifts fail. Generally:
- Intestate property,
- Residuary property,
- General gifts,
- Demonstrative gifts,
- Specific gifts.
Within a class, abatement is pro rata.
Lapse and Anti-Lapse
If beneficiary predeceases testator, gift lapses
Lapse Analysis:
- Under express terms of will
- Gift saved by anti-lapse statute (or cy pres for charity)
- Via residuary clause
- Via intestacy
Anti-Lapse Statutes
- Vary by state (lineal descendents, all family, everyone)
Cy Pres
Ability of a court to substitute equitably equivalent charity upon finding testator had charitable intent
Will consider extrinsic evidence
Interpretation of a Will (General Principles)
Basic construciton maxims
- will shows intent not to die intestate
- most recent provision prevails in case of controdictory provisions
- will is construed as a whole
- attemt to give meaning to all words
Ambiguity in Wills
- Patent (obvious) ambiguity - ambiguous on face
- court will consider extrinsic evidence but won’t fill in blanks
- Latent (hidden) ambiguity - ambiguous on face but cannot be carried out wihout further clarification (e.g., who are “children”
- will consider extrinsic evidence
- No apparent ambiguity - clear on face
- Plain meaning rule
- Modern rule - may consider extrinsic evidence
Incorporation by Reference
Must have
- Intent to incorporate,
- Writing in existance when will executed, and
- Be clearly identified in will
Revocation of Wills by Operation of Law
- Marriage
- Common Law States
- Forced or elective share (regardless of what is in will)
- Community Property State
- Spouses already own undivided interest in properties earned after marriage
- Spouse owns 50% of community property on death of other
- Spouses already own undivided interest in properties earned after marriage
- Common Law States
- Divorce
- Privisions in favor of ex-spouse are void
- Pretermitted or Omitted Children
- Born after execution, generally receive a share
- Exception for intentionally omitted
Revocation of Wills by Physical Act
Requires
- Intent to Revoke,
- Mental Capacity
- Physical Act (can be by proxy in presence of testator)
Partial Revocation by physical act (written in changes)
- depends on state, some state give effect if there is sufficient evidence to show testator made the changes
